Pirog v. Astrue

Filing 33

ORDER re (11 in 4:08-cv-02094-SBA) MOTION to Dismiss for Lack of Jurisdiction Social Security Case filed by Michael J. Astrue, (17 in 4:08-cv-02093-SBA) MOTION to Dismiss for Lack of Jurisdiction filed by Michael J. Astrue. Signed by Judge ARMSTRONG on 8/17/11. (lrc, COURT STAFF) (Filed on 8/17/2011)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 JOHN B. PIROG,

Case No: C 08-2093 SBA
C 08-2094 SBA

Plaintiff,

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ORDER
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vs.
Docket 17

9 MICHAEL ASTRUE,
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Defendant.

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On April 22, 2008, pro se Plaintiff filed a complaint for judicial review of the

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decision of the Commissioner of Social Security as a result of the denial of benefits. Dkt.

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1. Also on April 22, 2008, the Court issued its Procedural Order for Social Security

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Review Actions, which requires Defendant to file an answer, as well as Plaintiff to file a

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motion for summary judgment or for remand, and establishes a briefing schedule in relation

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to those matters. Dkt. 2. On August 4, 2008, instead of filing an answer, Defendant filed a

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motion to dismiss for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure

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12(b)(1). Dkt. 17. On November 7, 2008, the Court denied Defendant’s motion to dismiss.

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Dkt. 21. On November 24, 2008, Defendant filed a motion for reconsideration under

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Federal Rule of Civil Procedure 60(b)(6). Dkt. 22. On July 16, 2009, the Court granted

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Defendant’s motion for reconsideration, and, as a result, Defendant’s motion to dismiss is

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still pending before this Court. Dkt. 32.

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Since the Court issued its order on July 16, 2009 granting Defendant’s motion for

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reconsideration there has been no action taken in the case by either party. Dkt. 32. Thus,

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the Court does not have the Plaintiff’s opposition or Defendant’s reply pertaining to

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Defendant’s motion to dismiss. Moreover, Plaintiff has not prosecuted his case with due

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diligence given his lack of contact with the Court for over two years. Nevertheless,

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because no specific briefing order on Defendant’s motion to dismiss has been issued, pro se

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Plaintiff may not have been aware of his obligation to respond to the motion to dismiss or

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to diligently prosecute the instant action. Accordingly,

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IT IS HEREBY ORDERED THAT

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1.

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Defendant shall serve Plaintiff at both his California and Iowa addresses with

a copy of its motion to dismiss papers by no later than August 24, 2011.
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Plaintiff shall file his opposition of no more than ten (10) pages to

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Defendant’s motion to dismiss by no later than September 7, 2011. If Plaintiff does not

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intend to prosecute this action, he should file a stipulation for dismissal under Federal Rule

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of Civil Procedure 41(b), a request for dismissal under Rule 41(a), or a statement of non-

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opposition by that deadline. Plaintiff is hereby warned that his failure to comply with this

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order will result in the granting of Defendant’s motion to dismiss and dismissal of his

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action under Rule 41(b), especially given that Plaintiff has not prosecuted this action in any

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manner for over two years. “Pursuant to Federal Rule of Civil Procedure 41(b), the district

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court may dismiss an action for failure to comply with any order of the court.” Ferdik v.

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Bonzelet 963 F.2d 1258, 1260 (9th Cir. 1992). As such, the failure to prosecute an action

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and failure to file an opposition to a motion to dismiss in the manner prescribed by the

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Court is grounds for dismissal. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per

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curiam). While the Court does not countenance Plaintiff’s failure to prosecute, the Court

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grants Plaintiff an additional opportunity to respond to Defendant’s motion in consideration

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of less drastic alternatives to dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th

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Cir. 2002). Nonetheless, Plaintiff is warned that the failure to file a response by the

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deadline set herein will be deemed grounds for granting Defendant’s motion and

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dismissing the action under Rule 41(b), without further notice. As Plaintiff has had

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ample time to respond to Defendant’s motion to dismiss and has filed several prior

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requests for a continuance, the Court will not entertain any further requests for a

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continuance.

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2.

Defendants shall file a reply or other response of no more than ten (10) pages

by no later than September 14, 2011.
IT IS SO ORDERED.

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Dated: August 17, 2011

_____________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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PIROG et al,
Plaintiff,

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v.
ASTRUE et al,
Defendant.

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/

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Case Number: CV08-02093 SBA

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CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on August 17, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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John B. Pirog
336 Bon Air Center
#233
Greenbrae, CA 94904
Dated: August 17, 2011
Richard W. Wieking, Clerk

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By: LISA R CLARK, Deputy Clerk

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